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Judgment
T.V. Masilamani, J.—The revision petition is filed against the judgment and decree dated 1.4.1997 in R.C.A.No.60 of 1995 on the file of
the Subordinate Judge (Rent Control Appellate Authority), Coimbatore preferred against the judgment and decree dated 26.4.1995 in R.C.O.P.
No. 261 of 1979 on the file of the District Munsif (Rent Controller), Coimbatore.
The first petitioner (since deceased) preferred the revision petition and the 2nd petitioner and the respondents 2 to 5 are brought on record as
his legal representatives in this revision proceedings.
The first petitioner is the tenant of the demised premises under the 1st respondent/landlord who initiated the proceedings before the Rent
Controller for eviction of tenant/1st petitioner herein on the ground of demolition and reconstruction of the building and also wilful default in the
payment of rent by the tenant. The learned Rent Controller, having analysed the evidence both oral and documentary adduced on either side and
upon hearing the arguments advanced by the counsel, passed an order for eviction on the ground of wilful default committed by the tenant in the
payment of rent and also holding that the landlord/1st respondent herein had not pressed the prayer for demolition and reconstruction of the
building in the course of the proceedings. Hence, the 1st petitioner herein preferred the appeal before the Rent Control Appellate authority and
there also, the order passed by the Rent Controller was confirmed holding that the 1st petitioner/tenant committed wilful default in the payment of
rent. Hence the revision.
Though the learned counsel for the 1st respondent has argued at the outset that in view of the evidence on record, concurrent finding was
rendered by both the Rent Controller and the Appellate Authority only on the ground of wilful default in the payment of rent and therefore, the
other ground for owner''s occupation to demolish and reconstruct the building was not pressed by the 1st respondent/landlord. It is therefore
contended that the concurrent findings on this aspect of the matter cannot be interfered with in view of the ratio laid down in (1) Vallampati
Kalavathi Vs. Haji Ismail, ; and (2) D. Radhakrishnan v. M. Loorduswamy, (2001) 10 SCC 641 .
On a careful perusal of the impugned order passed by the Rent Control Appellate Authority as well as that of the learned Rent Controller, it is
evident that the 1st respondent had not pressed the ground of owner''s occupation for demolition and reconstruction of the building in both the
Courts below and therefore, having regard to the ratio laid down in the decisions referred supra, this Court is of the considered view that on the
basis of the evidence on record, it cannot be urged in this proceedings to decide the question whether the 1st respondent/landlord is entitled to
seek the relief for eviction so as to enable him to demolish and reconstruct the building.
In these circumstances, the only question that remains for consideration is whether the revision in so far as the decision with reference to wilful
default in the payment of rent rendered by the learned Rent Controller as well as the Appellate Authority is sustainable on the basis of the evidence
available on record.
It is not disputed that the 1st respondent filed the suit in O.S.No.1067 of 1981 for recovery of arrears of rent at the rate of Rs. 225/- per month
from 1.4.1997 to 31.3.1980 and obtained a decree and thereafter laid the execution proceedings in E.P. No. 262 of 1993 against the revision
petitioner who paid the decree amount piecemeal on several dates and thereupon the execution proceedings was terminated on 11.8.1994 as the
decree was fully satisfied.
The learned counsel for the revision petitioner has argued in this respect that even though the 1st respondent filed the suit for recovery of arrears
of rent at the rate of Rs.225/- per month, the Court passed a decree ultimately holding that the tenant is liable to pay the rent at Rs.75/- per month
and that therefore the learned Rent Controller as well as the Appellate authority failed to appreciate the evidence both oral and documentary in a
proper perspective so as to render a finding with reference to the discharge pleaded by the tenant who had also admitted to pay the balance
amount after deducting taxes and other expenses due by the landlord and that the latter failed to issue any receipt therefor.
In this context, he has placed reliance on the decision DURAIRAJ v. RATHANA BAI 1967 (I) M.L.J. 324. It is useful to extract the ratio laid
down therein to appreciate the facts of this case and it reads as follows:-
In order to obviate all confusion upon this relationship between a false defence and the existence of a ''wilful default'', I think that the following
proposition may be enunciated: (1) The fact that the tenant commits default, and puts forward a true explanation thereafter, does not necessarily
mean, that the default is not ''wilful''. ''Wilful default'' will have to be judged upon the index or basis of a conscious failure of the tenant to pay rent,
without any justification which the Court can accept as taking away the element of ''wilfulness''. The explanation may be true, therefore, and still the
default may be ''wilful'' for the simple reason that the explanation may not be acceptable, as showing that the default was not ''wilful''. (2) Equally, a
tenant may put forward an explanation which is false, and still the default may not be ''wilful'' at all. that would depend entirely on the surrounding
circumstances and probabilities. (3) But the fact that the explanation is false, does not imply that the default is not ''wilful.'' A defaulter may both be
guilty of ''wilful default'' and may put forward a false explanation for the failure to pay rent; this is fairly obvious, and this possibility seems to have
been missed in the analysis by the learned Judge. (4) It would equally follow that the tenant may put forward a true explanation, and that this may
show that the default was not ''wilful''. No further explanation will then be called for.
On the contrary, the learned counsel for the 1st respondent has drawn my attention to the fact that the arrears of rent due by the petitioner
herein had been collected by launching the execution proceedings in pursuance of the decree passed in the said suit filed by the 1st respondent and
therefore he has urged that the explanation offered by the petitioner that the 1st respondent never issued any receipt is not only false, but also not
supported by any piece of evidence to show that the petitioner had ever made an attempt to follow the procedure laid down u/s 8 of the Tamil
Nadu Buildings (Lease and Rent Control) Act, 1960. In this connection, he has drawn my attention to the decision MARUDACHALA UDAYAR
v. DHANDAPANI 1980 (I) M.L.J. 169 in support of his further argument that in the absence of proof of payment of rent, the obvious
presumption would be that the petitioner is guilty of wilful default in the payment of arrears of rent.
Here also, this Court is of the view that the following proposition of law reiterated in the said decision will be useful to appreciate the rival
contentions put forth by the learned counsel appearing on either side. The ratio laid down in 1980 (I) M.L.J. 169 is extracted hereunder:-
The receipt of the rent contemplated under sub-section (2) of section 8 must only be in accordance with the provisions of sub-section (1). If the
parties choose to adopt any other mode of payment and acknowledgment of the rents, they have to be content with the consequences, beneficial
or otherwise that may follow therefrom. If the tenant proves the payment of the rent by other modes, the Court can accept such proof and relieve
the tenant from the consequences of section 10. But, where wilful default in the payment of rents is alleged by the landlord and the answer of the
tenant is that the landlord never issues receipts for the payment of the rents, the Court cannot ignore the implications of section 8 and assess the
controversy without reference to such implications. In the absence of proof of payment of rents, it will not be in consonance with the provisions of
the Act to presume that the tenant must have paid the rents and the landlord must have declined to issue the receipts.
In view of the aspect of the matter discussed above, if the evidence on record is analysed, one would come to the irresistible conclusion that
the tenant/1st petitioner is the defaulter in the payment of rent and his explanation for the failure to pay rent is false. It follows necessarily that this
case squarely falls within the meaning of ''wilful default'' under caption (3) in the ratio laid down in 1967 (I) M.L.J. 324 cited by the learned counsel
for the petitioner. At the risk of repetition, the same may be extracted hereunder:-
But the fact that the explanation is false, does not imply that the default is not ''wilful.'' A defaulter may both be guilty of ''wilful default'' and may
put forward a false explanation for the failure to pay rent; this is fairly obvious, and this possibility seems to have been missed in the analysis by the
learned Judge.
In any view of the matter, this Court is of the considered opinion that both the learned Rent Controller and the Appellate authority have
analysed the evidence on record in a proper perspective and arrived at the right conclusion that the tenant/1st petitioner herein committed wilful
default in the payment of rent and rendered the concurrent findings accordingly. For the reasons stated above, this Court finds that there is no need
for interference with such findings.
Thus, the Civil Revision Petition is dismissed confirming the judgments and decrees of both the Courts below. However, the parties are
directed to bear their respective costs. The petitioners are given three months'' time from this day to vacate and hand over the property subject to
the condition that they file an affidavit within ten days from today giving an unconditional undertaking that they will vacate the property on or before
24-5-2004 failing which the landlord/1st respondent herein will be at liberty to execute the order for eviction.